On January 18, 2005, the
Court preliminarily certified this case to proceed as a collective action
on behalf of “Affected Employees”:

“i) who reside within the
district of this Court;

ii) who were employed by the
USPS in non-exempt positions;

iii) who were subjected to a
clock ring deletion that resulted in the loss of wages for overtime hours
worked and which occurred within three (3) years of the date the Affected
Employee files his or her Consent to Join form in this litigation; and

iv) whose claims do not
exceed $10,000.00, including attorneys’ fees and costs.”

Pursuant to the
District Court’s January 18, 2005 Order, on February 23, 2005, a
court-approved notice was sent to 32,323 individuals. In order to
participate in the case "Affected Employees" were given until April 25,
2005 to submit their consent to join forms with the Court-approved escrow
agent. As of May 6, 2005, 1769 consent to join forms had been filed
with the escrow agent.

Clock Rings’ Lawsuit
Limited
A federal judge has certified but limited a class-action lawsuit against
the USPS regarding management’s policy of arbitrarily deleting employees’
clock rings in order to avoid paying overtime.

Judge Richard A. Lazzara certified a collective action against the USPS in
the Middle District of Florida, which comprises the metropolitan areas of
Jacksonville, Ocala, Orlando, Tampa, and Fort Myers. Postal workers
outside of these areas, however, are excluded from the lawsuit. Attorneys
from the Tampa law firm of Burr & Smith originally had sought to establish
a nationwide class action. They will continue to represent plaintiffs in
the Florida district and may seek to bring suits in federal courts in
other locations. The national APWU is reviewing the matter to determine
whether to take nationwide action. source: American Postal Worker
Magazine- March/Apr 2005

February 14, 2005-A Florida U.S.
District Court judge on Jan 18th ordered that FLSA claims of any non-resident
Postal Workers and all claims in excess of $10,000.00, including fees
and costs, are due to be dismissed . Any dismissed FLSA claims are subject
to refiling in the U.S. District Court for the district in which they reside
or in the U.S. Court of Federal Claims. Over 4,000 employees from nearly every
state and territory of the United States signed consent forms to join this
lawsuit.

The lawsuit filed 1/30/04 on behalf
of
four postal workers in the U.S. District Court
for the Middle District Court of Florida ,alleged that USPS
has a practice of deleting overtime hours from the payroll records of its
non-exempt employees ("clock ring deletions"), thereby avoiding the payment
of wages owed to a potential class of 200,000 employees
(letter and rural
carriers, mail handlers, maintenance workers, distribution clerks, window
clerks, drivers, and other employees). The suit sought to redress
the wrongs caused by various USPS supervisors . In a three-count complaint
filed by Attorney Samuel Bearman of Pensacola, Florida alleged USPS
violated the following laws:

On August
26, 2004, the District Court dismissed allegations against USPS of violating
the RICO Act and Privacy Act from the overtime suit. USPS
petitioned the District Court to dismiss a
lawsuit that
accuses postal officials of intentionally deleting parts of employees' Time
Records to Avoid Paying Overtime by arguing that, " The Postal Service is
not Subject to RICO Liability As Part of the Federal Government; and
"Postal Service Officials Cannot Be Held Criminally Liable for Acts Committed
in Their Official Capacity."
Donahue vs FBI (pdf). The petition further stated "the Supreme Court observed ( in
USPS vs Flamingo Industries (pdf)) that while the Postal Reorganization
Act of 1971 may have waived the Postal Service's immunity from suit, it...did
not strip it of its governmental status."

The only allegation
that remained in this suit is USPS' violation of Fair Labor Standards
Act (FLSA).

The USPS argued
to the court that "jurisdiction over FLSA claims against the Government does
not arise out of the FLSA, but rather arises exclusively from the "Little
Tucker Act," 28 U.S.C. § 1346(a)(2). Under the terms of the Little Tucker
Act’s waiver of sovereign immunity, this Court’s jurisdiction extends solely
to non-tort, statutory civil actions against the United States which do not
exceed $10,000.00, for each Plaintiff, including attorneys’ fees and costs.
Further, "[a]ny civil action in a district court against the United States
under subsection (a) of section 1346 of this title may be prosecuted only
... in the judicial district where the plaintiff resides." USPS also argued
that there is a three-year statute of limitations for FLSA claims, based upon
a defendant’s willful acts, such as the ones before the Court.

In response to the Postal Service assertion, attorneys argued
"that it is the Postal Reorganization Act (PRA) that governs jurisdiction
in suits such as this one against the USPS. They argue that the "sue and be
sued" clause in section 409(a) of the PRA waives immunity and makes the USPS
amenable to suit in its official name. The attorneys maintained that while
the Little Tucker Act may provide an alternative, non-exclusive basis for
jurisdiction in this suit, the more specific waiver of sovereign immunity
provided for in the PRA, which expressly governs jurisdiction of suits against
the USPS, endows this Court with the jurisdictional authority to decide this
case

District Court Judge
Rejects Attorneys Argument, Agrees with USPS

District Court Judge Richard Lazzara wrote in
his decision that "The Little Tucker Act provides the sole jurisdictional
basis for a federal court to hear claims against the federal government to
recover compensation for violations of the FLSA." The judge also wrote,
"absent an express statement from Congress that the Little Tucker Act does
not apply to these cognizable FLSA claims against the Postal Service, the
Court should not imply such a Congressional intent." See United States
v. Flamingo Industries (USA) Ltd., 540 U.S. 736, 746-47 (2004). Therefore,
the Court will allow the class action lawsuit to go forward only on
the claims of the Postal Workers and opt-ins who reside within the district
of this Court that do not exceed $10,000.00 each, including attorneys’ fees
and costs.

Sidebar: under the
Tucker Act, the Court of Federal Claims has exclusive jurisdiction over civil
actions or claims against the Government for greater than $10,000. See
28 U.S.C.
§ 1491. Determinations of the Court of Federal Claims may be appealed
to the Federal Circuit or The “Little Tucker Act,”
28 U.S.C.
§ 1346(a)(2), confers jurisdiction on district courts for claims of $10,000
or less.

More
of District Court Judge's Ruling

- The claims of the named Plaintiffs and opt-in Plaintiffs
that fall outside the FLSA limitations period, or more specifically, that
date back more than three (3) years from the date the Affected Employee filed
his or her Consent to Join form in this litigation, are dismissed.

- Plaintiffs’ Motion to Facilitate Notice Under 29 U.S.C.
§ 216(b) (dkt.73) is granted to a limited extent. This case will proceed as
a collective action for overtime compensation under the FLSA on behalf of
the narrowly defined "Affected Employees":

i) who reside within the district of this Court;

ii) who were employed by the USPS in non-exempt positions;

iii) who were subjected to a clock ring deletion that resulted
in the loss of wages for overtime hours worked and which occurred within three
(3) years of the date the Affected Employee files his or her Consent to Join
form in this litigation; and

iv) whose claims do not exceed $10,000.00, including attorneys’
fees and costs.

All four of these criteria must be met by each "Affected Employee"
in order to opt into this case.

- Plaintiffs’ counsel shall, within seven (7) days
from the date of this Order, submit to the Court for its review revised versions
of their proposed "Notice of Rights in Connection With Pending Fair Labor
Standards Act (Overtime Compensation) Lawsuit Against the United States Postal
Service" and "Consent to Join Pursuant to 29 U.S.C. §216(b)" that strictly
conform to the dictates of this Order.

-. Within twenty (20) days from the date of this Order,
the USPS shall produce to Plaintiffs’ counsel a computer-readable data file
containing the names, addresses, and telephone numbers of all potential "Affected
Employees," as defined in paragraph 4 above, so that notice may be accomplished
in an expedited manner.

- Once the Notice and Consent form have been approved by the
Court, Plaintiffs’ counsel will be authorized to cause the mailing of said
documents to all "Affected Employees." Plaintiffs shall expedite such mailing
in light of the FLSA limitations period.

- Unless Plaintiffs’ counsel otherwise designate, in light
of the Court’s limitation on the class of Plaintiffs to only those "Affected
Employees" who reside within the district of this Court, Rosenthal & Company
of Novato, California is authorized to act as the escrow service for this
action, to mail the Notices and Consent forms, to receive returned Consent
forms from Affected Employees, and to enter the date on which Consent forms
are returned and deemed to be filed and to file all such forms with the Court
within ten (10) days of the close of the opt-in period.

note:
the judge also wrote, "After discovery has ended (and, therefore,
the time frame for opting in also has expired), the USPS may move under the
more stringent evidentiary standard to decertify the class based on
a lack of evidence of similarity among the Plaintiffs."

source:

STONE, et al.,
individually and on behalf of other similarly situated persons v. United
States Postal Service